the situation
You have a job vacancy—and it is one that you think best suits an
applicant without a ton of experience. In an effort to narrow the field
to just those candidates who fit the bill in terms of experience, you
post the vacancy online and include as one of the qualifications that
the applicant should have no more than a specified number of years of
experience. Could this lead to a claim of age discrimination?
the ruling
Apparently so, at least in the Northern District of Illinois. In a
recent decision, the district court denied an employer’s motion to
dismiss an applicant’s claim of disparate treatment under the ADEA under
these circumstances. Kleber v. CareFusion Corp., Case No. 15-cv-1994 (N.D. Ill. November 23, 2015).
CareFusion was looking for an attorney to fill a senior counsel
position. The qualifications in the online posting for the position
included “3 to 7 years (no more than 7 years) of relevant legal
experience.” Dale Kleber was a 59 year old lawyer who had previously
been the CEO of a national dairy trade association, general counsel for a
Fortune 500 company, and the chairman and interim CEO of a medical
device manufacturer. He submitted an application for the position but
was not invited to interview. Ultimately, Kleber filed a lawsuit which
included a claim for disparate treatment under the ADEA, claiming that
the requirement of seven years or less of legal experience was based on
the correlation between age and years of experience and was meant to
weed out older applicants.
CareFusion asked the court to dismiss the disparate treatment claim
on the grounds that failing to hire an overqualified applicant does not
constitute age discrimination (a conclusion reached by courts in
previous cases). However, Kleber had alleged that the experience cap was
really just a way of weeding out older applicants not because of
concerns of over-qualification, but because of “stereotypes and
unfounded assumptions regarding older workers’ commitment and their
willingness to be managed by younger, less-experienced supervisors.”
Although making sure to emphasize that its ruling on a motion to
dismiss was not based on the merits of the claim, the court concluded
that it was possible that an employer could use experience as a proxy
for age and thus make decisions ostensibly about experience but truly
motivated by assumptions regarding age. If so, this would be unlawful
age discrimination. So, the court found, Kleber had at least stated a
sufficient claim under the ADEA to survive the employer’s motion to
dismiss.
the point
At the end of the day, assuming the employer here can show that the
reason for the experience cap was its desire to eliminate overqualified
applicants (and had nothing to do with stereotypes or assumptions about
older applicants), it seems like the chances of the plaintiff in this
case convincing the court that the employer’s motives were improperly
age-based are slim. However, the employer was unable to defeat this
claim right off the bat and will have to deal with this lawsuit for at
least some period of time. Employers should be cautious about limiting
applicants to positions in ways that are tied to a protected
characteristic.
Originally posted on Virginia Employer Law Blog, by Elaine Inman Hogan on December 9, 2015.